Full bench weighs bid for secret Zuma vote

Hundreds protest while ‘judicial overreach’ argued during tough day at ConCourt

Hundreds of protesters marched to the Constitutional Court yesterday as the court weighed whether MPs can cast secret ballots in a vote of no confidence in President Jacob Zuma.

A long day of legal argument and the grilling of 10 advocates by a full Constitutional Court bench showed the complexity of the matter. Chief Justice Mogoeng Mogoeng adjourned the hearing after legal arguments ran into the evening.

He gave no date for the court to announce its decision. Zuma has survived similar votes in the past that were not secret.

The Constitutional Court was told yesterday the courts should not make decisions for parliament but should create the conditions for it to perform its functions.

Advocate Geoff Budlender SC, on behalf of the Council for the Advancement of the South African Constitution, addressed the issue of “judicial overreach” during arguments in the United Democratic Movement’s push for a secret ballot.

The UDM wants the court to declare that Section 102 of the constitution requires that motions of no confidence must be decided by secret ballot.

The ANC accused the courts of judicial overreach and its KwaZulu- Natal structure held a protest march against it as the hearing unfolded yesterday.

But the party is also divided on the matter. National executive committee member Joel Netshithenzhe recently described criticism of the judiciary as irrational and ill-informed.

Budlender told the court that the case before it was about ensuring the terrain was such that parliament could exercise its oversight function.

But Mogoeng probed whether ordering parliament to do anything specific would not amount to judicial overreach. He asked whether ordering the speaker to hold the vote in secret would be an intrusion into the space reserved for the National Assembly.

Justice Edwin Cameron asked whether it would not be sufficient for the court to leave it to the discretion of the speaker.

Mogoeng also argued that Speaker Baleka Mbete had not disagreed outright with a secret ballot, but simply said she did not have the power to enforce one.

Budlender said leaving the decision to the discretion of the speaker “would take us nowhere” and that the court had to go further.

“This case can either do A or B, an open or secret vote. An open vote, I submit, would lead to a failure of the National Assembly’s oversight role , ” he said.

Mogoeng asked him why the court would order that the speaker had the discretion, yet give her just one choice by ordering her to conduct a secret ballot.

Budlender highlighted the risk of MPs being expelled should they vote contrary to their party line.

Advocate Marumo Moerane argued that the constitution enabled parliament to determine its own rules and the National Assembly had rejected the secret ballot idea.

Advocate Ismael Semenya, on behalf of Zuma, argued that MPs should push for a secret ballot with parliament’s rules committee instead of approaching the court.

He conceded there was no downside to a secret ballot.

Political parties that support a secret ballot stated that the National Assembly’s oversight of the executive should be served by a secret ballot.

UDM advocate Dali Mpofu said the only question that arose in this case was the meaning of the words “a vote” in Section 102 of the constitution – did it imply that a secret ballot was required, permit a secret ballot or prohibit a secret ballot?

The section states that, if the National Assembly, by “a vote” supported by a majority of its members, passes a motion of no confidence in the president, the president and other executive members must resign.

Mpofu said: “This case is not about separation of powers, or encroachment of the court in anything. If our interpretation of Section 102 is correct, this was always like that since 1996 when the constitution was enacted.”

Opposition parties have called for ANC MPs to vote with their conscience. “ANC members of parliament will have to choose between what is best for themselves and what is best for South Africa,” DA leader Mmusi Maimane told the protesters.

“They did not swear [their oath of office] to be faithful to Jacob Zuma, or to the ANC. They promised to be faithful to South Africa.”

The case united DA protesters with marchers from the Economic Freedom Fighters.

“If parliament fails to remove Zuma, then the people in the 2019 election will make sure the ANC is voted out,” EFF supporter Daniel Mninele, who travelled from Pretoria to rally outside the court, said. – BDLive, The Times, with additional reporting by AFP